Citation Nr: 0637543
Decision Date: 12/04/06 Archive Date: 12/12/06
DOCKET NO. 02-01 935 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an original disability rating in excess of
10 percent for bilateral tinnitus.
2. Entitlement to an increased disability rating for
hypertension, currently rated as 10 percent disabling.
3. Entitlement to an increased (compensable) disability
rating for bilateral hearing loss.
4. Entitlement to service connection for a heart disability.
5. Entitlement to service connection for a stomach
disability.
6. Entitlement to service connection for headaches.
7. Entitlement to service connection for a psychiatric
disorder
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The veteran served on active duty from July 1984 to June
1987.
This appeal comes before the Board of Veterans' Appeals
(Board) from a September 2000 rating decision of the Houston,
Texas Regional Office (RO) of the United States Department of
Veterans Affairs (VA). In that decision, the RO granted
service connection for tinnitus, and assigned a 10 percent
disability rating for it.
In a March 2004 decision, the Board denied the veteran's
appeal for a rating in excess of 10 percent for tinnitus.
The veteran appealed the Board's decision to the United
States Court of Appeals for Veterans Claims (Court). In May
2005, the Court granted a joint motion from the veteran and
VA to remand the tinnitus rating claim to the Board for
readjudication, in light of an April 2005 Court decision on
the issue of ratings for bilateral tinnitus.
The issues of increased disability ratings for hypertension
and hearing loss, and for service connection for a heart
disorder, a stomach disorder, headaches, and a psychiatric
disorder, are addressed in the REMAND portion of the decision
below and are REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, D.C.
FINDINGS OF FACT
1. The veteran's tinnitus is perceived bilaterally.
2. The 10 percent rating assigned for the veteran's tinnitus
is the maximum schedular rating for tinnitus, whether it is
perceived in one ear or both ears.
CONCLUSION OF LAW
A rating in excess of 10 percent for tinnitus is not
warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1,
4.87, Diagnostic Code (Code) 6260 (2002), Code 6260 (2005);
Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), describes
VA's duty to notify claimants regarding the development of
evidence relevant to their claims for VA benefits.
38 U.S.C.A. § 5100 et seq. (West 2002); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a) (2005). The provisions of the
VCAA have no effect on an appeal where the law, and not the
underlying facts or development of the facts, is dispositive
in a matter. Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001). The facts in this case are not in dispute. As the
law is dispositive, the provisions of the VCAA do not apply.
Because no reasonable possibility exists that further notice
or assistance would aid in substantiating this claim, any
deficiencies of VCAA notice or assistance are moot. See
38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet.
App. 362, 368 (2001).
In January 1999, the RO received the veteran's claim for
service connection and compensation for hearing loss and
tinnitus. On VA audiological evaluation in July 2000, the
veteran reported having tinnitus that he perceived in both of
his ears. In a September 2000 rating decision, the RO
granted service connection and a single 10 percent rating for
tinnitus. In August 2001, the veteran filed a notice of
disagreement with that decision, asserting that a separate 10
percent rating should be assigned for tinnitus in each ear.
In a March 2004 decision, the Board denied the veteran's
appeal for a rating in excess of 10 percent for tinnitus.
The veteran appealed the Board's decision to the Court.
Disability ratings are based upon the average impairment of
earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities. The
percentage ratings in the Rating Schedule represent, as far
as can practicably be determined, the average impairment in
earning capacity resulting from diseases and injuries
incurred or aggravated during military service and their
residual conditions in civil occupations. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.1.
Tinnitus is rated under Code 6260, which was revised
effective June 13, 2003, in part to clarify existing VA
practice that only a single 10 percent evaluation is assigned
for tinnitus, whether the sound is perceived as being heard
in one ear, both ears, or in the head. 38 C.F.R. § 4.87,
Diagnostic Code 6260, Note 2 (2005).
In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court
held that versions of Code 6260 in effect prior to 1999 and
prior to June 13, 2003, required the assignment of dual
10 percent ratings for tinnitus that is bilateral, i.e.,
perceived in both ears. VA appealed the Court's decision in
Smith to the United States Court of Appeals for the Federal
Circuit (Federal Circuit).
In May 2005, the Court granted a joint motion from the
veteran and VA to remand the tinnitus rating claim to the
Board for readjudication, in light of the Court's decision in
Smith.
In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the
Federal Circuit reversed the Court's decision in Smith, and
affirmed VA's longstanding interpretation of Diagnostic Code
6260 as authorizing only a single 10 percent rating for
tinnitus, whether perceived as unilateral or bilateral. In
light of the foregoing, the Board concludes that the version
of Code 6260 in effect prior to June 2003 precludes a
schedular rating in excess of a single 10 percent rating for
tinnitus. As the revised version of Code 6260 explicitly
prohibits a schedular rating in excess of 10 percent for
tinnitus, the veteran's claim for a schedular rating in
excess of 10 percent for tinnitus, based on assignment of a
separate rating for each ear, must be denied under both the
old and the new versions of the regulation. As the
disposition is based on interpretation of the law, and not
the facts of this case, the claim must be denied based on a
lack of entitlement under the law. See Sabonis v. Brown, 6
Vet. App. 426 (1994).
ORDER
A rating in excess of 10 percent for tinnitus, to include
based on assignment of a separate rating for each ear, is
denied.
REMAND
In a February 2005 rating decision, the RO denied the
veteran's claims for increased disability ratings for
hypertension and hearing loss, and for service connection for
a heart disorder, a stomach disorder, headaches, and a
psychiatric disorder. In February 2005, the veteran filed a
notice of disagreement with the February 2005 rating
decision. As the RO has yet to issue a statement of the case
with regard to that notice of disagreement, the Board must
remand those claims to the RO for the issuance of a statement
of the case. 38 U.S.C.A. § 7105 (West 2002); see Manlincon
v. West, 12 Vet. App. 238 (1999).
Accordingly, this case is REMANDED for the following:
The RO should issue a statement of the
case with regard to the claims for
increased disability ratings for
hypertension and hearing loss, and for
service connection for a heart disorder,
a stomach disorder, headaches, and a
psychiatric disorder.
Thereafter, if the RO receives a timely substantive appeal
with regard to those claims, the RO should return the case to
the Board, if otherwise in order. The Board intimates no
opinion as to the ultimate outcome of these issues. The
veteran has the right to submit additional evidence and
argument on the matters that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
____________________________________________
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs